Moore v. Hullander

Court of Appeals of Georgia, First Division

April 25, 2018

MOOREv.HULLANDER.

BARNES, P. J., MILLER and REESE, JJ.

BARNES, Presiding Judge.

Following
the grant of his application for discretionary appeal,
Matthew James Moore appeals the trial court's order
granting attorney fees to his ex-wife, Noreen Dumas
Hullander, in connection with a dispute over child custody
and child support. For the reasons that follow, we vacate the
attorney fees award and remand this case for further
proceedings consistent with this opinion.

The
record reflects that Moore and Hullander were divorced in
2005, and Hullander was awarded primary custody of their
minor child and child support of $250 per month. Several
years later, the trial court entered an order modifying child
support to $450 per month. Subsequently, in March 2016, Moore
filed a petition for modification of child custody. Moore
attached to his petition the fourteen-year-old child's
affidavit of election to reside primarily with Moore.
Hullander answered and counterclaimed for contempt against
Moore for failing to pay the full $450 per month in
court-ordered child support.

A
temporary hearing on the issues of custody modification and
contempt was held in May 2016. During the hearing, Moore paid
his child support arrears in the amount of $16, 400 to
Hullander. Hullander stated that she did not intend to go
forward with her contempt motion in light of Moore's full
payment at the hearing. At the conclusion of the hearing, the
trial court declined to modify custody of the child during
the remaining weeks of the school year, but the court
indicated that it would revisit the issue of custody before
the end of summer at the final hearing. However, a temporary
order was never issued by the trial court after the hearing.

The
child later changed her mind about living with Moore, and
Moore decided in August or September 2016 that he would
dismiss his petition seeking to modify child custody.
However, Moore did not file his voluntary dismissal of his
petition until March 2017.

Hullander
filed a motion seeking attorney fees and expenses under OCGA
§§ 9-15-14 (b); 13-6-11; 19-6-2 (a); and 19-9-3
(g). Moore opposed the motion, and a hearing on the issue of
attorney fees was held in June 2017. At the hearing,
Hullander's attorney introduced, without objection,
billing statements that covered the initiation of the case
through early September 2016 that totaled $6, 201, and the
attorney stated in his place that his bills were reasonable
and customary. Moore testified that he had decided to
voluntarily dismiss his petition to modify custody once his
child changed her mind about her election to live with him.
Moore's counsel also noted that the contempt issue
"was wrapped up and was satisfied before any sort of
litigation had to occur as to . . . the contempt."

At the
end of the hearing, the trial court announced that
"based on certain factors, " it would award
Hullander attorney fees in the amount of $4, 000. The trial
court's subsequent written order awarding attorney fees
to Hullander did not specify the statutory basis for the
award. The order stated:

[Hullander] is entitled to partial reimbursement of the
attorney fees based on the fact that [Moore] was found in
contempt of this Court for being substantially behind on his
child support payments.

Further, the Court finds that [Moore] unreasonably delayed
the resolution of this matter by his actions, or lack
thereof.

After
the trial court entered its written order awarding attorney
fees to Hullander, Moore filed an application for
discretionary appeal, which this Court granted. This appeal
followed.

1.
Moore contends that the trial court erred in predicating its
award of attorney fees in part on a prior finding of contempt
for failure to pay child support because no such finding had
been made by the court. We agree.

As
previously noted, in its order awarding attorney fees, the
trial court stated that Moore had previously been "found
in contempt for being substantially behind on his child
support payments, " and at the hearing on
Hullander's motion for attorney fees, the trial court
stated that it had previously held Moore "in willful,
indirect contempt of court for failure to pay child
support." However, the record belies the trial
court's recollection of what had transpired earlier in
the case and instead reflects that Hullander stated at the
temporary hearing that she did not intend to go forward with
her contempt motion in light of Moore's full payment of
his child support arrearage. Furthermore, the trial court
never entered a written order after the temporary hearing
that addressed the issue of contempt or any other issues
raised at that hearing.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Because
it is apparent from the record that Hullander did not go
forward with her contempt motion and the issue of contempt
was never adjudicated, the trial court abused its discretion
by awarding attorney fees based in part on its erroneous
finding that it had previously held Moore in contempt for
failure to pay child support. See Harris v. Mahone,
340 Ga.App. 415, 429 (2) (797 S.E.2d 688) (2017) (trial court
abused its discretion where the court&#39;s ruling on
attorney fees was predicated on "an erroneous factual
finding"); Postell v. Alfa Insurance Corp., 332
Ga.App. 22, 28 (2) (a) (iii) (772 S.E.2d 793) (2015)
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.